Borody v Vickers [2021] FCA 618 (on JADE) related to earlier proceedings which had been commenced in the District Court of NSW (the District Court proceedings). In those proceedings, Dr Borody was sued for medical negligence by a former patient, Ms X. Dr Vickers was retained by the solicitors acting for Ms X, to prepare an expert report concerning Dr Borody’s medical assessment and treatment of Ms X (the Vickers Report). The Vickers Report was filed with the Statement of Claim, as an “Expert Report”. (Dr Borody and Dr Vickers are both gastroenterologists.)
The District Court proceedings, after being transferred to the Supreme Court, were settled on confidential terms without a hearing and without the Vickers Report being tendered into evidence.
Dr Borody commenced the present proceedings before that settlement was reached. He alleged that the Vickers Report contained representations which were misleading or deceptive in contravention of s 18 of the Australian Consumer Law. In the application considered by the Court, two issues arose:
- Firstly, whether Dr Vickers is immune from suit on the basis of witness immunity or, more precisely, whether Dr Borody’s claim has no reasonable prospect of success because Dr Vickers is immune from suit – see, for example: Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268.
- Secondly, whether summary judgment should be granted on the basis that Dr Vickers’ preparation of the Vickers Report was not “in trade or commerce” with the consequence that s 18 of the ACL cannot apply.
In this interlocutory decision the application by Dr Vickers for summary judgment was successful. As to immunity at [49] the primary judge held:
In the present case, the purposes for which the Vickers Report was prepared included it being filed as evidence to be relied upon in the proceedings and to satisfy the requirement in UCPR r 31.36(1). The only reasonable conclusion on the case as pleaded is that there is a sufficient connection to the District Court proceedings to establish that witness immunity applies. The fact that the report would naturally also be relied upon by the lawyers who had retained Dr Vickers in deciding whether to commence proceedings does not disengage the witness immunity principle. Indeed, in the circumstances of this case, it supports the connection between the report and the District Court proceedings.
As to the application of the Australian Consumer Law at [51] the primary judge held obiter:
It is not strictly necessary to consider whether Dr Vickers’ conduct was “in trade or commerce”. Nevertheless, I would state my conclusion that on the facts as pleaded there is no reasonable prospect of establishing that the provision of the report was “in trade or commerce” – see: Little v Law Institute of Victoria (No 3) [1990] VR 257 at 273 (lines 33-34); Griffith at [142]; compare the factually different case of Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84 at [18] to [22].
Comment:
The effect of the Attwells decision was briefly touched upon in this matter at [43] – [44]. Unfortunately the Court does not appear to have been asked to deal with some of the broader issues raised in the article Expert witness immunity in Australia after Attwells v Jackson Lalic Lawyers: A smaller and less predictable shield. (2017) 24 Journal of Law and Medicine 628, written by Tina Cockburn and me. Save that the Court did observe at [43] that pleaded case was that Dr Vickers was retained to provide an opinion about Dr Borody’s assessment and treatment of Ms X, not that he was retained to advise in relation to the commencement of proceedings.